Jottings By An Employer's Lawyer

Tuesday, July 15, 2003

Perceived Disability Claims Succeeds Because of Erroneous Interpretation of Doctor's Restriction


ADA claims are difficult to make but the third prong of the ADA definition, often referred to as perceived disability, may be an easier route for plaintiffs. In Ollie v. Titan Tire Co. (8th Cir. 7/15/03) when Ollie was turned down as a strike replacement for work in the warehouse because of his asthma, he lost his claim that he was actually disabled, but won because those involved in the hiring decision had perceived him as disabled.

In keeping with their normal practice, the company acted based on an oral report from the doctor's office where the post-offer, pre-employment physical was conducted. Here the report was, “The Examinee is medically able to do the essential functions of the job with accommodations listed below.” In the space below he wrote: “Pt. has asthma. May have difficulty in areas [with] dust or fumes.” What the person at the company wrote was, "“Asthma, no working where dust or fumes.” Concluding that everywhere in the warehouse would have dust or fumes, company personnel revoked the job offer.

Unfortunately for Titan, the difference between what the doctor said and what the employer wrote and acted on was enough to distinguish this from other cases where reliance on a doctor's restriction was sufficient to protect the employer. The appellate court did affirm the district court's rejection of the jury's award of punitive damages, but upheld the lower court's award of two years front pay based on the differential of what Ollie would have earned at Titan and what he was earning at the job he was able to get. Moral of the story: when rejecting on medical restrictions, be careful how broadly you view them.

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